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The principal pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was undertaken “for the purpose of saving [her] life.”1  These statutes were declared unconstitutional in Roe v. Wade.2  Enforcement of the statutes was not enjoined.  Although the pre-Roe abortion statutes have not been expressly repealed,3 the United States Court of Appeals for the Fifth Circuit has held that the statutes have been repealed by implication with the enactment of significant post-Roe legislation regulating the practice of abortion.4  That holding is not binding upon a state court, but may be persuasive.  Whether the pre-Roe statutes would be enforceable if Roe v. Wade were overruled thus depends on whether they have been repealed by implication, a question on which no state court has pronounced an opinion to date.5


1 Tex. Penal Code Ann. arts. 1191, 1192, 1193, 1194, 1196 (West 1961), transferred to Tex. Rev. Civ. Stat. Ann. arts. 4512.1, 4512.2, 4512.3, 4512.4, 4512.6 (West 1976).  See Tex. Acts 1973, ch. 399, § 5 & Disp. Table at 996e.

2 410 U.S. 113 (1973).  Prior to Roe, the Texas Court of Criminal Appeals rejected a constitutional challenge to the statutes.  See Thompson v. State, 493 S.W.2d 913 (Tex. Crim. App. 1971), vacated and remanded, 410 U.S. 950 (1973), on remand, 493 S.W.2d 793 (Tex. Crim. App. 1973).

3 The statutes struck down in Roe have not been reprinted in the current volumes of either the Texas Revised Civil Statutes Annotated or the Texas Penal Code.  The statutes, however, have not been expressly repealed.

4 See McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, Feb. 22, 2005, Docket No 04-967.

5 Apart from the pre-Roe statutes, it is unlikely that the Texas post-viability statute, see Tex. Health & Safety Code § 170.002 (West 2001), would effectively prohibit post-viability abortions because it allows abortions for mental, as well as physical, health reasons.  As the experience in California demonstrated, mental health exceptions were widely abused.  See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health). such abortions to be performed to preserve the pregnant woman’s life or health, health not being defined in the statute. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.”  United States v. Vuitch, 402 U.S. 62, 72 (1971).  See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered).  There would be few, if any, abortions that could not be justified on psychological or emotional grounds.


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May be reprinted without permission but with attribution to the Life Legal Defense Fund.